ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
BOARD DATE: 17 December 2019 
DOCKET NUMBER: AR20170016793

APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction 
of Military Records (ABCMR) decisions promulgated in Dockets A92-10896 and 
AR20160000281, on 14 April 1993 and 28 February 2017, respectively Number.
Specifically, he requests his under other than honorable conditions (UOTHC) discharge 
be upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552)
*	Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of 
Claim)

FACTS:

1.	Incorporated herein by reference are military records that were summarized in the 
previous considerations of the applicant's case by the ABCMR in Dockets Number
A92-10896 and AR20160000281, on 14 April 1993 and 28 February 2017, respectively.

2.	The applicant states he was unable to get orders to return to Vietnam or to any other 
station and was kept at Fort McClellan, AL, because they said he was assigned to 
Germany not Vietnam. He had gone to Fort McClellan because he was sick but could 
not get any help.

3.	The applicant's contention that he was never absent without leave (AWOL) was 
considered by the Board in its second consideration of his case; therefore, this is not a 
new argument warranting further consideration. However, he contends his extended 
absence resulted from his inability to get return orders to Vietnam. This contention was 
not previously considered; therefore, it constitutes a new argument warranting 
consideration at this time.

4.	The applicant enlisted in the Alabama Army National Guard on 12 October 1965 and 
was ordered to active duty on 28 March 1967. He was honorably discharged for the 
purpose of immediate enlistment in the Regular Army on 4 March 1968.  He enlisted in




the Regular Army on 5 March 1968 and was assigned for duty in the Republic of 
Vietnam.

5.	The applicant left Vietnam on special leave on 7 March 1969 and failed to return at 
the time his leave expired.

6.	The applicant surrendered to military authorities at Fort McClellan, AL, on 28 August 
1973. He was transferred to the Personnel Confinement Facility (PCF) at Fort 
Campbell, KY.

7.	The applicant departed AWOL from the Fort Campbell PCF on 4 September 1973. 
He was apprehended by the Federal Bureau of Investigation on 21 March 1974, and 
was returned to military control at Fort Campbell.

8.	Court-martial charges were preferred against the applicant on 18 April 1974 for 
violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 
(Charge Sheet) shows he was charged with being AWOL from on or about 9 May 1969 
through on or about 28 August 1973, and from on or about 4 September 1973 through 
on or about 21 March 1974.

9.	The applicant consulted with legal counsel on 22 April 1974.

   a.	He was advised of the basis for the contemplated trial by court-martial, the 
maximum permissible punishment authorized under the UCMJ, the possible effects of 
an under other than honorable conditions discharge, and the procedures and rights that 
were available to him.

   b.	Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge under the provision of Army Regulation 635-200 (Personnel Separations – 
Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- 
martial. In his request for discharge, he acknowledged his understanding that by 
requesting discharge, he was admitting guilt to the charge against him, or of a lesser 
included offense that also authorized the imposition of a bad conduct or dishonorable 
discharge. He further acknowledged he understood that if his discharge request was 
approved he could be deprived of many or all Army benefits, he could be ineligible for 
many or all benefits administered by the Veterans Administration, and he could be 
deprived of his rights and benefits as a veteran under both Federal and State laws.

   c.	He was advised he could submit any statements he desired in his own behalf. 
His request for discharge indicates he submitted a statement. He stated he would like 
to be discharged because he had a job at home and [due to his period of absence] it 
had been too long to get readjusted.  He noted his 11 months of service in Vietnam.
   



10.	The separation authority approved the applicant's request for discharge on 26 April 
1974, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by 
court-martial, and directed that the applicant be reduced to the lowest enlisted grade 
and be issued an undesirable discharge.

11.	The applicant was discharged on 7 May 1974. The DD Form 214 he was issued 
shows he was discharged under the provisions of Army Regulation 635-200,
Chapter 10, for the good of the service, and his service was characterized as UOTHC.

12.	The ABCMR denied the applicant's request for a discharge upgrade on 14 April 
1993, indicating that he had not presented and the records did not contain sufficient 
justification to conclude that it would be in the interest of justice to grant the relief 
requested or to excuse the failure to file within the time prescribed by law.

13.	The applicant requested reconsideration of his request on 16 November 2015. In 
its review, the ABCMR determined the evidence presented did not demonstrate the 
existence of a probable error or injustice. Therefore, the Board determined the overall 
merits of the case were insufficient as a basis to amend the decision of the ABCMR set 
forth in Docket Number AC92-10896 on 14 April 1993. It did note that there was an 
administrative error in the record that should be corrected. Therefore, the Board 
requested the correction of the applicant's DD Form 214 (Report of Separation from 
Active Duty) for the period ending 7 May 1974 to show he was awarded the Purple 
Heart.

14.	The Board may consider the applicant's petition, his service record, and his 
statements in light of the published guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

The Board carefully considered the applicant's request, evidence in the records and 
published DoD guidance for consideration of discharge upgrade requests. The Board 
considered the applicant's statement, his record of service, the frequency and nature of 
his misconduct, the reason for his separation, and whether to apply clemency. The 
Board found insufficient evidence of in-service mitigating factors and the applicant 
provided no evidence of post-service achievements, mitigating conditions or letters of 
reference in support of a clemency determination. Based on a preponderance of 
evidence, the Board determined that the character of service the applicant received 
upon separation was not in error or unjust.




BOARD VOTE:

Mbr 1
Mbr 2
Mbr 3

:
:
:
GRANT FULL RELIEF
:
:
:
GRANT PARTIAL RELIEF
:
:
:
GRANT FORMAL HEARING
:X
    :X
:X
DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or 
injustice. Therefore, the Board determined the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned.

1/23/2020

 X	
CHAIRPERSON

I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.


REFERENCES:

1.	Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR. 
The regulation provides that the ABCMR begins its consideration of each case with the 
presumption of administrative regularity. The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.
2.	Army Regulation 15-185 provides in such cases, the staff of the Board will review the 
request to determine if substantial relevant evidence has been submitted that shows 
fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists 
substantial relevant new evidence discovered contemporaneously with or within a short 
time after the Board’s original decision.  If the staff finds such evidence, the case will be




resubmitted to the Board. If no such evidence is found, the application will be returned 
without action.

3.	Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the 
basic authority for the separation of enlisted personnel.  It provided:

   a.	An honorable discharge is a separation with honor and entitles the recipient to 
benefits provided by law. The honorable characterization is appropriate when the 
quality of the member’s service generally has met the standards of acceptable conduct 
and performance of duty for Army personnel, or is otherwise so meritorious that any 
other characterization would be clearly inappropriate.

   b.	A general discharge is a separation from the Army under honorable conditions. 
When authorized, it is issued to a Soldier whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge. A characterization of under 
honorable conditions may be issued only when the reason for the Soldier’s separation 
specifically allows such characterization.

   c.	Chapter 10 provides that a member who has committed an offense or offenses 
for which the authorized punishment includes a punitive discharge may, submit a 
request for discharge for the good of the service in lieu of trial by court-martial. The 
request may be submitted at any time after charges have been preferred and must 
include the individual's admission of guilt.  Although an honorable or general discharge 
is authorized, a discharge under other than honorable conditions is normally considered 
appropriate and at the time of the applicant's discharge a Undesirable Discharge 
Certificate was issued for this type of discharge.

4.	The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency 
generally refers to relief specifically granted from a criminal sentence. Boards for 
Correction of Military/Naval Records may grant clemency regardless of the court-martial 
forum. However, the guidance applies to more than clemency from a sentencing in a 
court-martial; it also applies to any other corrections, including changes in a discharge, 
which may be warranted on equity or relief from injustice grounds.

   a.	This guidance does not mandate relief, but rather provides standards and 
principles to guide Boards in application of their equitable relief authority.  In 
determining whether to grant relief on the basis of equity, injustice, or clemency 
grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn 
testimony, policy changes, relative severity of misconduct, mental and behavioral health 
conditions, official governmental acknowledgement that a relevant error or injustice was 
committed, and uniformity of punishment.
   




   b.	Changes to the narrative reason for discharge and/or an upgraded character of 
service granted solely on equity, injustice, or clemency grounds normally should not 
result in separation pay, retroactive promotions, and payment of past medical expenses 
or similar benefits that might have been received if the original discharge had been for 
the revised reason or had the upgraded service characterization.

//NOTHING FOLLOWS//